Can you steal an intangible?

Can something intangible that only exists as a pattern of bits somewhere on some computer hardware that you've never seen be stolen? Can it be considered actual theft? Can the Law -- as it is actually written and applied -- competently deal with those situations without substantive modification?

Actually the answer to all of these questions is yes. So long as you know what you're actually talking about.

In the words of a certain, famous, fictional Spaniard, 'You keep using that word. I do not think it means what you think it means.'

Indeed the whole meaning of theft, particularly when applied to digital and other intangible forms of content has become seriously blurred in popular culture. In the Law, however, it has retained its meaning consistently for most of a century -- and surprisingly, that meaning still allows the Law and courts to apply traditional law to these twenty-first century assets.

A simple definition of criminal theft

Most legal jurisdictions (though not all) follow some simple variation of the following definition. Most of them are nearly word-for-word identical to this:

A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. A person who steals is guilty of theft; and "thief" shall be construed accordingly.

The key terms here are dishonestly , property, and depriving. And dishonesty and deprivation form the two basic tests.

Property

Property is legally defined as 'Not only money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth.'

That includes protectable ideas, digital files, financial instruments (like stocks and bonds, loans and credits), computer graphics, certain arrangements of words and quite a bit more.

The law makes a special distinction for 'Real Property' -- that is, physical land -- that is afforded to no other kind of property, real or virtual even if it looks like land, virtual land cannot constitute Real Property as it is defined. The axioms on which Real Property are founded are not present in its virtual semblance.

In a simpler form, Virtual Property doesn't possess the qualities that make the special rules about Real Property necessary or applicable. Virtual property is one of the other classes of property.

Online intangibles exist as files, streams of bits, and database entries, like software, music files, YouTube videos and many other kinds of media with which courts have become experienced.

Dishonesty

If it occurred in an allowable framework of conduct, then the act automatically fails the test for dishonesty under criminal law. In EVE Online recently, 200 billion ISK was taken from a corporation. There's no criminal theft involved in this case. It is a normal and expected part of the game-play. Legally, nothing dishonest has taken place, so the Law is not involved.

Of course, there's a shade of difference between how ordinary folks use the term 'dishonestly' and how the Law uses it, but we'll stay with some straightforward examples.

Deprivation

In order for something to have been stolen, the person it has been stolen from must be deprived of it. That is, they no longer have it or are no longer able to use it. Contrary to the marketing done by the MPAA and the RIAA, copying a music track or a movie isn't stealing -- because the owner has not been deprived of it. It is however an infringement of their legal rights, and that's still serious -- but stealing and theft are not the right words to apply.

Likewise the copying of a texture or a skin, or the replication of an item in a virtual environment does not constitute stealing or theft under the Law -- as the owner has suffered no deprivation of the thing in question -- but these acts do infringe on the rights of others, and remain serious matters for the Law regardless of the venue or medium in which they take place.

In a recent Dutch case, two boys physically coerced ("kicked and threatened with a knife") another boy until he gave them two game items. Coercion of this nature obviously meets the test for dishonesty, and equally the test for deprivation, as the victim was deprived of the items.

Despite the intangible nature of the items, the decision to treat a situation like this as criminal theft is really rather a no-brainer for most judges.

Last year, a gang kidnapped a star GunBound player and held a gun to his head for five hours while they attempted to get him to divulge his password for the game. Dishonesty? Check. Deprivation? Also check. That they were unsuccessful only makes it attempted theft (in addition to their other offenses).

But it isn't like physical violence is required to tip the scales of Justice. Password theft, phishing scams and so forth all pass the test, as with some other Dutch teens who stole passwords to deprive other Habbo Hotel users of over US$5,800 in Habbo furniture.

With a popular misunderstanding of what theft actually is being widely promulgated, it is only to be expected that the boundaries have become very blurred. You're probably exposed to that misinformation just about every time you put a DVD in the player these days. It would be a legally false statement to say that something that has been unlawfully copied was actually stolen.

At the end of the day it isn't about whether the goods are tangible or not -- an increasingly large percentage of the world's goods, money and services are indeed not tangible -- but about whether it is a matter of criminal theft (with its two basic tests) or the infringement of rights under Civil or Commercial Law.

Nevertheless, theft (criminal stealing) and infringements of rights (unlawful copying) are both areas that the Law is quite comfortable and increasingly experienced in dealing with, even in cases of intangible items, whether those items are music files, movies, game gold, skins or magic swords.